Estate Robert Smith v. Marasco

318 F.3d 497 | 3rd Cir. | 2003

BEFORE: MCKEE and GREENBERG, Circuit Judges,(cid:13) and LIFLAND, District Judge*(cid:13) (Filed: January 29, 2003)(cid:13) Jordan B. Yeager (argued)(cid:13) Boockvar & Yeager(cid:13) 714 Main Street(cid:13) Bethlehem, PA 18018(cid:13) Attorneys for Appellants(cid:13) ________________________________________________________________(cid:13) * Honorable John C. Lifland, Senior Judge of the United States District(cid:13) Court for the District of New Jersey, sitting by designation.(cid:13) 2(cid:13) D. Michael Fisher(cid:13) Attorney General(cid:13) J. Bart DeLone (argued)(cid:13) Senior Deputy Attorney General(cid:13) Calvin R. Koons(cid:13) Senior Deputy Attorney General(cid:13) John G. Knorr, III(cid:13) Chief Deputy Attorney General(cid:13) Chief, Appellate Litigation Section(cid:13) Office of Attorney General(cid:13) 15th Fl., Strawberry Square(cid:13) Appellate Litigation Section(cid:13) Harrisburg, PA 17120(cid:13) Attorneys for Appellees(cid:13) OPINION OF THE COURT(cid:13) GREENBERG, Circuit Judge:(cid:13) This matter comes on before this court on an appeal by(cid:13) the plaintiffs, the Estate of Robert Smith, Pauline Smith,(cid:13) Dana Smith, and Wanda Smith, to whom we refer(cid:13) collectively as the "Smiths," from the district court’s order(cid:13) entered January 14, 2002, granting summary judgment in(cid:13) favor of the defendants, 46 specifically named and 25 John(cid:13) Doe employees of the Pennsylvania State Police. The Smiths(cid:13) also appeal from the district court’s orders of September(cid:13) 17, 2001, October 12, 2001, November 15, 2001, and(cid:13) November 30, 2001, to the extent that they denied their(cid:13) requests to take additional depositions and to extend the(cid:13) time for discovery. For the reasons stated herein, we will(cid:13) affirm in part and reverse in part the district court’s order(cid:13) granting summary judgment and will affirm its discovery(cid:13) orders without prejudice to the Smiths seeking to reopen(cid:13) discovery on the remand we are ordering.(cid:13) I. BACKGROUND(cid:13) Decedent Robert Smith, a former police officer and(cid:13) Vietnam veteran, suffered from various medical problems,(cid:13) including Post-Traumatic Stress Disorder ("PTSD") and(cid:13) 3(cid:13) coronary heart disease. Several members of the state police(cid:13) were familiar with Smith, largely as a result of ongoing(cid:13) problems between Smith and his neighbor, Michael Shafer.(cid:13) Prior to the events giving rise to this litigation members of(cid:13) Troop L of the state police had investigated a number of(cid:13) complaints Shafer and Smith had lodged against each(cid:13) other. Smith also had complained numerous times about(cid:13) the conduct of Troop L members, and the state police at(cid:13) one point had charged Smith with making false reports to(cid:13) law enforcement and harassment. The Smiths allege that(cid:13) through these contacts the state police came to know that(cid:13) Smith was in fragile physical and mental health, had a(cid:13) major heart condition, had undergone knee replacement(cid:13) surgery, suffered from hypertension, recently had been(cid:13) hospitalized, and was required to be free from stressful(cid:13) situations and to take medication. Several troopers stated(cid:13) in their depositions, and police event logs confirm, that(cid:13) certain troopers were aware that Smith suffered from PTSD(cid:13) and experienced flashbacks.(cid:13) The events directly resulting in this litigation started on(cid:13) July 10, 1999, when, in response to a complaint by Shafer,(cid:13) Troopers James Marasco and Nicholas Scianna of Troop L(cid:13) went to Smith’s residence at approximately 10:30 p.m.1(cid:13) Marasco responded to Shafer’s complaint even though(cid:13) Smith’s residence was outside his assigned geographic(cid:13) patrol area. The troopers did not have an arrest warrant or(cid:13) a search warrant. In an attempt to contact Smith, they(cid:13) repeatedly knocked on his door, but he did not respond.(cid:13) They then called the barracks and spoke to Corporal(cid:13) Mervin Rodriguez ("M. Rodriguez") who advised them to(cid:13) have the residence telephoned and to leave if there was no(cid:13) answer. The call was made but was not answered. Marasco(cid:13) and Scianna, however, did not leave, but instead went to(cid:13) the back of the house searching for Smith.2(cid:13) _________________________________________________________________(cid:13) 1. There are contradictions in the record as to the nature of Shafer’s(cid:13) complaint. One account suggests that officers went to Smith’s residence(cid:13) to investigate Shafer’s complaint that his lights had been shot out, while(cid:13) written reports suggest that they went there to investigate a complaint(cid:13) that a light from Smith’s property was shining on Shafer’s property.(cid:13) 2. The parties dispute whether the troopers proceeded to the back of the(cid:13) house while the call was being made to Smith’s residence or after(cid:13) learning that no one answered the call.(cid:13) 4(cid:13) Scianna testified that while in the back of the house he(cid:13) observed a small red light in a window and thought that(cid:13) Smith might be videotaping the officers. Marasco testified(cid:13) that he saw the light on Scianna’s body, and written(cid:13) reports state that the troopers believed that Smith was(cid:13) directing a laser-sighted firearm at Scianna.3 The Smiths(cid:13) dispute this account, noting that the troopers never saw a(cid:13) firearm. Moreover, the Smiths point to contradictory(cid:13) statements concerning where on Scianna’s body they(cid:13) allegedly saw the red light, the location of the officers when(cid:13) they first saw the light, and whether the light was(cid:13) emanating from Smith’s or Shafer’s home. In any event, the(cid:13) officers retreated and called for back-up assistance. M.(cid:13) Rodriguez and Trooper Thomas Rodriguez ("T. Rodriguez")(cid:13) responded and unsuccessfully attempted to communicate(cid:13) with Smith over a police vehicle’s public address system(cid:13) and by telephone. M. Rodriguez then called state police(cid:13) Lieutenant Fetterolf to request assistance from the state(cid:13) police’s Special Emergency Response Team ("SERT").(cid:13) Fetterolf agreed and contacted Corporal Hall of SERT, who,(cid:13) with Captain Torkar, activated SERT.(cid:13) Fetterolf testified that at the time he agreed to activate(cid:13) SERT, he considered the scenario to be a "barricaded(cid:13) gunman" situation. He also testified, however, that the(cid:13) circumstances did not lead him to believe that a gun might(cid:13) be involved, or even that someone was barricaded in(cid:13) Smith’s home. Hall testified that SERT should not have(cid:13) been activated unless officers had prepared or were in the(cid:13) process of preparing a warrant, or if there were exigent(cid:13) circumstances. Nevertheless the state police activated SERT(cid:13) before they made the decision to obtain a warrant even(cid:13) though, in Hall’s opinion, exigent circumstances did not(cid:13) exist.(cid:13) Before SERT arrived, several officers began to establish a(cid:13) perimeter around Smith’s residence. M. Rodriguez testified(cid:13) that at some point he and T. Rodriguez saw an individual(cid:13) they believed to be Smith walk from the residence to a shed(cid:13) in the backyard. The individual did not respond to their(cid:13) calls and they did not identify him positively as Smith.(cid:13) _________________________________________________________________(cid:13) 3. There was extensive deposition testimony in this case.(cid:13) 5(cid:13) SERT responded with a negotiation team and a tactical(cid:13) team. It appears that at least 30 SERT members wearing(cid:13) riot gear and camouflage and armed with various weapons(cid:13) were present. Sharpshooters targeted firearms at the house,(cid:13) a helicopter hovered overhead, and the state police would(cid:13) not allow anyone, even family members, to come or go to(cid:13) the premises without police permission. SERT(cid:13) unsuccessfully attempted to contact Smith by telephone(cid:13) and over the PA system. Smith, however, did contact his(cid:13) daughter Dana on the telephone, telling her that there were(cid:13) state troopers outside his house. Dana later advised the(cid:13) state police Personal Communications Officer ("PCO") of(cid:13) this call.(cid:13) In the early morning of July 11, 1999, Trooper Weaver,(cid:13) the on-duty criminal investigator, filed criminal charges of(cid:13) aggravated assault, simple assault, and recklessly(cid:13) endangering a person against Smith and obtained a(cid:13) warrant for his arrest. Moreover, Trooper Andrew Wenger(cid:13) obtained a search warrant for Smith’s premises. According(cid:13) to the Smiths, SERT rejected offers from family, friends,(cid:13) and neighbors to attempt to communicate with Smith and(cid:13) prevented Chris Zwicky, a neighbor familiar with the woods(cid:13) near Smith’s house, from searching for Smith. They also(cid:13) chose not to record a message from anyone close to Smith,(cid:13) despite having technology to do so, and decided not to(cid:13) utilize Dana Smith as a mediator, despite her having(cid:13) received a call from Smith asking her to do so. Finally,(cid:13) SERT rejected the use of a psychologist.(cid:13) SERT then entered and cleared the house and the shed(cid:13) in the backyard using rocks, tear gas, and "flash bang"(cid:13) distraction devices. Nevertheless the police did not find(cid:13) anyone in either structure. They did, however, recover eight(cid:13) weapons including handguns with scopes, though none had(cid:13) a laser sight. The officers also found a video cassette and a(cid:13) camcorder, which they seized after obtaining a warrant, as(cid:13) well as Smith’s wallet, identification, cash, credit cards,(cid:13) keys, false teeth and medication he was required to take by(cid:13) reason of recently having had triple bypass surgery. After(cid:13) learning that Smith had a hunting hideout in the woods,(cid:13) SERT searched the wooded area adjacent to Smith’s(cid:13) residence with Zwicky’s aid.4 Having failed to locate Smith,(cid:13) _________________________________________________________________(cid:13) 4. The Smiths proffer evidence suggesting that a number of SERT(cid:13) members already had left the scene and were called back only when(cid:13) 6(cid:13) the officers called off the search and, around midday on(cid:13) July 11, 1999, left the scene.(cid:13) On July 12, 1999, the complaint against Smith was(cid:13) withdrawn. That same day, Smith’s brother filed a missing(cid:13) persons report because Smith had not returned home. The(cid:13) parties dispute the nature of the search effort over the next(cid:13) days. The defendants presented records indicating that(cid:13) Marasco and Corporal Elser conducted a foot search for(cid:13) Smith on July 14, 1999; that Corporal Schell conducted an(cid:13) aerial search in a state police helicopter and interviewed(cid:13) neighbors; that Wenger inquired into Smith’s cell phone(cid:13) records to determine if the phone had been used; that, on(cid:13) July 15, 1999, Elser contacted the Lebanon Veterans(cid:13) Administration Hospital in an effort to locate Smith; and(cid:13) that, on July 16, 1999, members of the state police(cid:13) searched the wooded area behind the Smith residence,(cid:13) describing that area as impenetrable, though they(cid:13) eventually found Smith’s cell phone.(cid:13) On the other hand, the Smiths proffer evidence indicating(cid:13) that the police did not treat Smith like an armed fugitive or(cid:13) missing person by, for example, conducting a house-to-(cid:13) house inquiry or a sustained search, trying to contact(cid:13) family or friends, or checking with local hospitals or(cid:13) commercial establishments. They also proffer expert(cid:13) testimony suggesting that the officers’ conduct in the days(cid:13) following the incident, as well as during the incident itself,(cid:13) fell below accepted standards of police practice. They note(cid:13) that, according to police records, the July 14, 1999 search(cid:13) lasted only 35 minutes and extended only 4 to 5 feet into(cid:13) the woods, that the police failed to use any maps,(cid:13) diagrams, photos, or compass during their July 16, 1999(cid:13) search, and that the police rejected requests by family and(cid:13) friends to use available search dogs.(cid:13) The Smiths also suggest that police actually located(cid:13) Smith’s cell phone earlier than July 16, 1999, pointing to(cid:13) _________________________________________________________________(cid:13) Zwicky, who was confident that he could find Smith, insisted that they(cid:13) search for Smith. The Smiths also suggest that SERT failed to use a grid(cid:13) or to map the area in any way, and that SERT simply gave up on the(cid:13) search after checking Smith’s hunting hideout.(cid:13) 7(cid:13) Smith’s brother’s testimony to the effect that Weaver(cid:13) mentioned finding the phone on July 13, 1999. They assert(cid:13) that the police hid this discovery, as well as the discovery(cid:13) of Smith’s body at some point prior to July 18, 1999. They(cid:13) proffer evidence suggesting that police on July 11, 1999,(cid:13) were in the part of the woods where Smith’s body later was(cid:13) found; that the police helicopter, which was equipped with(cid:13) heat sensors designed to locate bodies, hovered above this(cid:13) spot for an extended period of time; that police were(cid:13) searching that location at the same time Smith’s cell phone(cid:13) received an incoming call; and that clippings of brush cut(cid:13) back by police were found within ten to 15 yards of Smith’s(cid:13) body. Furthermore, they submit that if the police did not(cid:13) recover the phone until July 16, 1999, there is no way they(cid:13) could have failed to smell the odor of Smith’s decomposing(cid:13) corpse, which later was found only ten to 15 yards from the(cid:13) place where they recovered the phone. Id. Forensic(cid:13) pathologist Sanford Edberg stated in his report that a(cid:13) person should have been able to notice the smell and the(cid:13) buzz of flies within one day from a distance of ten to 20(cid:13) yards.(cid:13) On July 18, 1999, Smith’s friend, Alan Achey, found(cid:13) Smith’s severely decomposed body in a wooded area(cid:13) approximately 200 yards from Smith’s home. Edberg(cid:13) estimated that Smith died sometime between 11:50 a.m.(cid:13) and 11 p.m. on July 11, 1999, and concluded that, given(cid:13) Smith’s medical condition, the stress of the incident(cid:13) probably led to a fatal heart attack.(cid:13) The Smiths brought this action in the district court(cid:13) pursuant to 42 U.S.C. S 1983, alleging that the defendants(cid:13) violated Smith’s rights under the First, Fourth, and(cid:13) Fourteenth Amendments. The Smiths also included(cid:13) wrongful death, survival and intentional infliction of(cid:13) emotional distress claims under state law. After extensive(cid:13) discovery proceedings, the defendants moved for summary(cid:13) judgment on July 27, 2001, both on the merits and on the(cid:13) basis of qualified immunity. On September 17, 2001, the(cid:13) district court granted the Smiths’ motion to extend(cid:13) discovery pursuant to Fed. R. Civ. P. 56(f), but on October(cid:13) 12, 2001, the district court denied the Smiths’ appeal from(cid:13) an order of the magistrate judge denying their request to(cid:13) 8(cid:13) take more than ten depositions, a limitation the magistrate(cid:13) judge earlier had imposed. On November 15, 2001, the(cid:13) district court denied the Smiths’ renewed motion to take(cid:13) additional depositions and for an extension of time for(cid:13) discovery and then, on November 30, 2001, denied the(cid:13) Smiths’ renewed Rule 56(f) motion. On January 14, 2001,(cid:13) the district court again denied the Smiths’ renewed motions(cid:13) to take additional depositions and to extend discovery,(cid:13) granted the defendants’ motion for summary judgment on(cid:13) all section 1983 claims on the merits mentioning, but not(cid:13) predicating its decision on, the qualified immunity(cid:13) arguments. The court dismissed the state law claims(cid:13) without prejudice. This appeal followed.(cid:13) II. JURISDICTION AND STANDARD OF REVIEW(cid:13) A. JURISDICTION(cid:13) The district court had jurisdiction pursuant to 28 U.S.C.(cid:13) SS 1331, 1343, and 1367 in that the complaint alleged(cid:13) federal civil rights claims under 42 U.S.C. S 1983 and(cid:13) supplemental state law claims. On January 14, 2002, the(cid:13) district court entered final judgment in the case, and on(cid:13) February 8, 2002, the Smiths timely filed their notice of(cid:13) appeal. We therefore have jurisdiction pursuant to 28(cid:13) U.S.C. S 1291.(cid:13) B. STANDARD OF REVIEW(cid:13) We exercise de novo review of the district court’s grant of(cid:13) summary judgment. See Kneipp v. Tedder, 95 F.3d 1199,(cid:13) 1204 (3d Cir. 1999). We review questions concerning the(cid:13) scope of discovery for abuse of discretion. See Brumfield v.(cid:13) Sanders, 232 F.3d 376, 380 (3d Cir. 2000).(cid:13) III. DISCUSSION(cid:13) A. SUMMARY JUDGMENT ORDER(cid:13) 42 U.S.C. S 1983 provides:(cid:13) Every person who, under color of any statute,(cid:13) ordinance, regulation, custom, or usage, of any State(cid:13) or Territory or the District of Columbia, subjects, or(cid:13) causes to be subjected, any citizen of the United States(cid:13) 9(cid:13) or other person within the jurisdiction thereof to the(cid:13) deprivation of any rights, privileges, or immunities(cid:13) secured by the Constitution and laws, shall be liable to(cid:13) the party injured in an action at law, suit in equity, or(cid:13) other proper proceeding for redress . . . .(cid:13) Notwithstanding its broad language section 1983 does not(cid:13) create substantive rights; rather it merely provides a(cid:13) remedy for deprivations of rights established elsewhere in(cid:13) the Constitution or federal laws. Kneipp, 95 F.3d at 1204.(cid:13) Thus, the initial question in a section 1983 action is(cid:13) " ‘whether the plaintiff has alleged a deprivation of a(cid:13) constitutional right at all.’ " Donahue v. Gavin, 280 F.3d(cid:13) 371, 378 (3d Cir. 2002) (quoting County of Sacramento v.(cid:13) Lewis, 523 U.S. 833, 841 n.5, 118 S. Ct. 1708, 1714 n.5(cid:13) (1998)).5(cid:13) The Smiths alleged that the defendants violated Smith’s(cid:13) rights to substantive due process under the Fourteenth(cid:13) Amendment both under the "state-created danger" doctrine(cid:13) and by engaging in a cover-up. They further alleged that(cid:13) the defendants violated Smith’s rights to be free from the(cid:13) use of excessive force, unreasonable searches and seizures,(cid:13) and malicious prosecution under the Fourth Amendment.(cid:13) Finally, the Smiths alleged that the defendants violated(cid:13) Smith’s rights under the First Amendment by retaliating(cid:13) against him for complaints he had made concerning prior(cid:13) contacts with the state police officers. In a comprehensive(cid:13) opinion the district court found that, as a matter of law, the(cid:13) Smiths could not show that Smith had suffered any(cid:13) deprivation of a constitutional right and thus the court(cid:13) entered summary judgment in favor of the defendants.(cid:13) 1. Substantive Due Process Claims(cid:13) The Smiths advance two substantive due process(cid:13) _________________________________________________________________(cid:13) 5. While Donahue was concerned with an appeal in a case in which the(cid:13) defendants had obtained summary judgment on the basis of absolute or(cid:13) qualified immunity, obviously we should make the same inquiry even(cid:13) though the district court did not decide the case on the basis of the(cid:13) defendants having qualified immunity. We note, however, that the(cid:13) defendants have advanced their claim to qualified immunity on this(cid:13) appeal as an alternative basis to affirm the order for summary judgment.(cid:13) 10(cid:13) theories: (1) state-created danger; and (2) cover-up and(cid:13) mishandling of Smith’s corpse.(cid:13) a. State-Created Danger Doctrine(cid:13) In Kneipp v. Tedder, we recognized the state-created(cid:13) danger theory of section 1983 liability, holding that a(cid:13) plaintiff must prove four elements: (1) the harm ultimately(cid:13) caused was foreseeable and fairly direct; (2) the state actor(cid:13) acted in willful disregard for the safety of the plaintiff; (3)(cid:13) there existed some relationship between the state and the(cid:13) plaintiff; and (4) the state actors used their authority to(cid:13) create an opportunity that otherwise would not have(cid:13) existed for the third party’s crime to occur. Kneipp, 95 F.3d(cid:13) at 1208 (citing Mark v. Borough of Hatboro, 51 F.3d 1137,(cid:13) 1152 (3d Cir. 1995)). The fourth element’s reference to a(cid:13) "third party’s crime" arises from the doctrine’s origin as an(cid:13) exception to the general rule that the state does not have a(cid:13) general affirmative obligation to protect its citizens from the(cid:13) violent acts of private individuals. See Kneipp , 95 F.3d at(cid:13) 1208. The courts, however, have not limited the doctrine to(cid:13) cases where third parties caused the harm as Kneipp itself(cid:13) demonstrates. In that case, a police officer stopped a visibly(cid:13) intoxicated husband and wife, Joseph and Samantha(cid:13) Kneipp, for allegedly causing a disturbance. Kneipp, 95(cid:13) F.3d at 1201. When the officer allowed Joseph to go home(cid:13) to relieve the babysitter watching his son, Joseph assumed(cid:13) that the police would take Samantha, whose blood alcohol(cid:13) level later was estimated at .25%, either to the hospital or(cid:13) to the police station. Id. at 1201-02 & n.4. The officer,(cid:13) however, eventually sent Samantha home alone, and she(cid:13) was found later that night unconscious at the bottom of an(cid:13) embankment next to a parking lot across the street from(cid:13) the Kneipps’ home. Id. As a result of her exposure to the(cid:13) cold, she suffered hypothermia, which caused a condition(cid:13) known as anoxia, which in turn resulted in permanent(cid:13) brain damage impairing many basic body functions. Id. The(cid:13) Kneipps instituted a district court action against the police(cid:13) officers who obtained a summary judgment. The Kneipps(cid:13) appealed and we reversed and remanded the case for trial.(cid:13) Id. at 1213-14.(cid:13) Although Kneipp provides the framework for evaluating a(cid:13) state-created danger claim, recent cases have refined(cid:13) 11(cid:13) certain elements of the four-part test we set forth above.(cid:13) First, in County of Sacramento v. Lewis, the Supreme Court(cid:13) held that an officer’s "deliberate indifference" or "reckless(cid:13) disregard" alone would not lead to liability for violating(cid:13) substantive due process rights in a pursuit case; liability(cid:13) attaches only to conduct that "shocks the conscience." 523(cid:13) U.S. at 845-47, 118 S.Ct. at 1716-17. In Miller v. City of(cid:13) Philadelphia, building on County of Sacramento v. Lewis(cid:13) and other Supreme Court cases, we suggested that the(cid:13) "shocks the conscience" standard was applicable to all(cid:13) substantive due process cases. Miller, 174 F.3d 368, 374-(cid:13) 75 (3d Cir. 1999). Second, in Morse v. Lower Merion School(cid:13) District, we refined the third and fourth prongs of the state-(cid:13) created danger test. Morse, 132 F.3d 902 (3d Cir. 1997). In(cid:13) Morse we held that the third requirement--a relationship(cid:13) between the state and the plaintiff--ultimately depends on(cid:13) whether the plaintiff was a foreseeable victim, either(cid:13) individually or as part of a discrete class of foreseeable(cid:13) victims. Id. at 914. Furthermore, we clarified that, with(cid:13) respect to the fourth element--creating the opportunity for(cid:13) harm--"the dispositive factor appears to be whether the(cid:13) state has in some way placed the plaintiff in a dangerous(cid:13) position that was foreseeable, and not whether the act was(cid:13) more appropriately characterized as an affirmative act or an(cid:13) omission." Id. at 915.(cid:13) Here, analyzing the first element--foreseeable and fairly(cid:13) direct harm--the district court concluded that the officers,(cid:13) even with knowledge of Smith’s poor health, as a matter of(cid:13) law could not have foreseen that he would flee from the(cid:13) house and as a consequence suffer a heart attack in the(cid:13) woods. App. at 50. But we believe that this conclusion(cid:13) ignores evidence that, if believed, could lead a jury to(cid:13) conclude that Smith suffered foreseeable harm. To start(cid:13) with, the official incident report states that it was the(cid:13) officers’ purpose to make Smith appear, and once officers(cid:13) believed they had seen Smith moving from the house to the(cid:13) shed, Marasco and M. Rodriguez "moved into a position . . .(cid:13) to block [Smith’s] return to the residence if attempted." Id.(cid:13) at 548. Moreover, as noted above, at least some of the(cid:13) officers on the scene were aware of Smiths’ mental and(cid:13) physical condition, including his tendency to have(cid:13) flashbacks to his service in Vietnam under stressful(cid:13) 12(cid:13) situations, and, once the search of the residence was(cid:13) conducted, at least some officers were aware that Smith(cid:13) had fled without his necessary medication. In this regard(cid:13) the Smiths’ pathology expert stated that "a person such as(cid:13) Smith, suffering from post traumatic stress disorder would(cid:13) have been greatly alarmed by the arrival of police with a(cid:13) helicopter and the assault on his residence with bright(cid:13) lights, breaking windows with rocks, flash bang distraction(cid:13) devices and tear gas, all of which caused him to flee the(cid:13) house and hide in the woods where the stress of these(cid:13) police-induced actions caused a fatal heart attack." Id. at(cid:13) 2378-79. The Smiths also proffer the expert testimony of(cid:13) Dr. McCauley, a police practices expert, who opined that a(cid:13) "reasonably trained police officer would have reasonably(cid:13) concluded that injury or death to Smith was a reasonably(cid:13) foreseeable consequence of Smith’s mental and medical(cid:13) conditions, especially knowing he was without his(cid:13) medication." Id. at 2343.(cid:13) When we consider this evidence and draw all reasonable(cid:13) inferences in the Smiths’ favor, we conclude that the(cid:13) district court erred in determining that a jury could not find(cid:13) that Smith’s harm was foreseeable. As in Kneipp , a jury(cid:13) could find that "[t]he affirmative acts of the police officers(cid:13) here created a dangerous situation, requiring that they take(cid:13) additional measures to ensure [the plaintiff ’s] safety,"(cid:13) especially where police "intervened to cut off[the plaintiff ’s](cid:13) private source of protection." Kneipp, 95 F.3d at 1210.(cid:13) This case is not like Morse, in which a daycare operator(cid:13) was not liable for leaving the rear entrance of a school(cid:13) open, thereby allowing an individual with a history of(cid:13) mental illness to enter and kill a teacher. In Morse, we held(cid:13) that harm to the teacher was not foreseeable, largely(cid:13) because the defendants were unaware that any mentally(cid:13) deranged person might be waiting outside the building.(cid:13) Morse, 132 F.3d at 910. We realize that the number of(cid:13) officers aware of Smith’s mental and physical condition and(cid:13) failure to bring proper medication when he fled is unclear.(cid:13) Nevertheless, the Smiths have presented sufficient evidence(cid:13) to allow a jury to find that at least some of the officers were(cid:13) aware of Smith’s condition and should have foreseen that(cid:13) he might flee and suffer adverse medical consequences(cid:13) when SERT was activated.(cid:13) 13(cid:13) With respect to the second element in a state-created(cid:13) danger claim--conscience-shocking conduct--the district(cid:13) court found that neither the decision to confront an(cid:13) individual suffering from PTSD with officers dressed in(cid:13) fatigues, a helicopter, and weapons nor the officers’ alleged(cid:13) failure to conduct a fully thorough search shocked the(cid:13) conscience. App. at 52-54. The district court failed to(cid:13) recognize, however, that, as we noted in Miller , the precise(cid:13) degree of wrongfulness required to reach the conscience-(cid:13) shocking level depends on the circumstances of a particular(cid:13) case. Miller, 174 F.3d at 375. As we indicated in United(cid:13) Artists Theatre Circuit, Inc. v. Township of Warrington, No.(cid:13) 01-3533, slip op. at 11, 2003 WL 115585, at * (3d Cir. Jan.(cid:13) 14, 2003), since County of Sacramento v. Lewis , "our cases(cid:13) have repeatedly acknowledged . . . that the meaning of [the(cid:13) shocks the conscience] standard varies depending on the(cid:13) factual context." Cf. Brown v. Commonwealth of Pa. Dep’t of(cid:13) Health, No. 01-3234, slip op. at 11, 2003 WL 148919, at *6(cid:13) (3d Cir. Jan. 22, 2003) (shocks the conscience standard(cid:13) "applies to the actions of emergency medical personnel").(cid:13) For example, in the custodial situation of a prison, where(cid:13) forethought about an inmate’s welfare is possible,(cid:13) deliberate indifference to a prisoner’s medical needs may be(cid:13) sufficiently shocking, while "[a] much higher fault standard(cid:13) is proper when a government official is acting(cid:13) instantaneously and making pressured decisions without(cid:13) the ability to fully consider the risks." Miller, 174 F.3d at(cid:13) 375.(cid:13) In cases involving a "hyperpressurized environment,"(cid:13) such as a prison riot or a high-speed chase, liability(cid:13) normally will attach only where a "purpose to cause harm"(cid:13) is demonstrated. Id. In Miller itself, we held that a social(cid:13) worker acting to separate a parent and child was operating(cid:13) in an environment somewhere between the prison(cid:13) riot/high-speed chase scenario and the custodial situation,(cid:13) and that conscience-shocking conduct could be established(cid:13) by a showing of more than negligence or deliberate(cid:13) indifference, but less than a purpose to cause harm. Id. The(cid:13) plaintiffs in that case therefore had to show "a level of gross(cid:13) negligence or arbitrariness that indeed ‘shocks the(cid:13) conscience.’ " Id. at 375-76.(cid:13) 14(cid:13) In this case, the officers were confronted with what(cid:13) Fetterolf described as a "barricaded gunman" situation.(cid:13) This case, however, did not involve the "hyperpressurized(cid:13) environment" of an in-progress prison riot or a high-speed(cid:13) chase. See Miller, 174 F.3d at 375. Indeed, the official(cid:13) incident report shows that at least one hour passed(cid:13) between the time Marasco and Scianna approached Smith’s(cid:13) residence and the time Fetterolf authorized a request to(cid:13) activate SERT. During that time no shots were fired and the(cid:13) officers did not see a firearm brandished. Moreover, at least(cid:13) after the police arrived at the Smith residence, the police(cid:13) had no reason to be concerned about the safety of third(cid:13) parties. Thus, this case does not involve a(cid:13) "hyperpressurized environment" such that the Smiths to(cid:13) recover would have to demonstrate that the defendants had(cid:13) an actual purpose to cause harm.(cid:13) At the same time, however, this case is not one in which(cid:13) the police had "the luxury of proceeding in a deliberate(cid:13) fashion, as prison medical officials can." Miller, 174 F.3d at(cid:13) 375. Because the urgency and timing involved in this case(cid:13) is more like the situation in Miller, the Smiths here must(cid:13) demonstrate "a level of gross negligence or arbitrariness(cid:13) that indeed ‘shocks the conscience.’ " Id. at 375-76. We(cid:13) think based on our reading of the precedents in this elusive(cid:13) area of the law that, except in those cases involving either(cid:13) true split-second decisions or, on the other end of the(cid:13) spectrum, those in which officials have the luxury of(cid:13) relaxed deliberation, an official’s conduct may create state-(cid:13) created danger liability if it exhibits a level of gross(cid:13) negligence or arbitrariness that shocks the conscience.(cid:13) The Smiths have produced sufficient evidence to allow a(cid:13) reasonable jury to conclude that the officers’ conduct both(cid:13) with regard to activating SERT and with regard to searching(cid:13) of the woods shocked the conscience. In addition to the(cid:13) evidence already discussed, the Smiths proffer the expert(cid:13) opinion of Dr. McCauley, who suggests that the officers’(cid:13) conduct fell significantly below accepted professional(cid:13) standards for dealing with emotionally disturbed persons,(cid:13) stating in particular that "[h]ad the officers acted in(cid:13) accordance with accepted police training and practices in(cid:13) dealing with [emotionally disturbed persons], it is more(cid:13) 15(cid:13) likely than not that the harm/death suffered by[Smith](cid:13) would have been avoided," and that police inappropriately(cid:13) assumed "a rigid enforcement role, which aggravated and(cid:13) escalated the tenor of the situation." J.A. at 2337.(cid:13) Furthermore, the Smiths have amassed evidence calling(cid:13) into question the adequacy of the search efforts and the(cid:13) motives behind the numerous decisions that cut Smith off(cid:13) from private sources of potential aid. Although it is true(cid:13) that the officers in this case, unlike the officer in Kneipp,(cid:13) did not, as the district court noted, completely abandon the(cid:13) situation or totally cut off all outside help, we are unwilling(cid:13) to adopt the position that their efforts to mitigate a danger(cid:13) that they allegedly created necessarily insulate them from(cid:13) liability. If the Smiths can prove that the officers’ efforts(cid:13) were so minimal as to constitute gross negligence or(cid:13) arbitrariness that shocks the conscience, then the second(cid:13) prong of the Kneipp test will be met. In this case, the(cid:13) district court should not have determined as a matter of(cid:13) law that the officers’ efforts were adequate where questions(cid:13) of fact remain as to what they could have and should have(cid:13) done to confront a known emotionally disturbed person and(cid:13) to conduct a proper search for that person after he was(cid:13) flushed from his home.(cid:13) It appears to be undisputed that the third prong of the(cid:13) Kneipp state created danger test--a relationship between(cid:13) the plaintiff and the state--has been met here. In any(cid:13) event, as in Kneipp, the defendants here,"exercising [their](cid:13) powers as . . . police officer[s] . . . . exerted sufficient(cid:13) control" over Smith to meet the relationship requirement.(cid:13) See Kneipp, 95 F.3d at 1209.(cid:13) To meet the fourth prong of the test the Smiths must(cid:13) demonstrate that the officers "used their authority to create(cid:13) an opportunity that otherwise would not have existed" for(cid:13) harm to befall Smith. See Kneipp, 95 F.3d at 1209. A(cid:13) reasonable jury could conclude that the decisions to(cid:13) activate SERT against someone in Smith’s physical and(cid:13) mental condition, flush Smith from his home, confine him(cid:13) to the densely wooded area, block his route of return, reject(cid:13) the use of search dogs, not allow family or friends to(cid:13) communicate with him over the PA system, and search only(cid:13) a short distance into the woods after observing that Smith(cid:13) 16(cid:13) was without his wallet, identification, cash, credit cards,(cid:13) keys, and medication, among other actions, created just(cid:13) such an opportunity.6 As in Kneipp, it is "conceivable that,(cid:13) but for the intervention of the police," which arguably put(cid:13) the victim there in a "worse position" and increased her risk(cid:13) of danger, Smith would have returned home on his own or(cid:13) with the encouragement of his family or friends. Id. at(cid:13) 1209.(cid:13) The district court found that this element could not be(cid:13) proven because the officers employed legitimate tactics.(cid:13) App. at 53. This conclusion both usurps the role of the jury(cid:13) as the Smiths have presented substantial evidence calling(cid:13) into question the officers’ motives and tactics and(cid:13) misapplies the fourth prong of the Kneipp test, which asks(cid:13) only whether, but for the defendants’ actions, the plaintiff(cid:13) would have been in a less harmful position. Evidence of the(cid:13) legitimacy of the tactics used by the troopers may be(cid:13) relevant to the "shocks the conscience" prong, but it says(cid:13) little about whether such tactics increased the risk to(cid:13) Smith. The Smiths have produced sufficient evidence to(cid:13) allow a reasonable jury to find that the troopers placed(cid:13) Smith in a foreseeably dangerous position.(cid:13) Inasmuch as we have concluded that a reasonable jury(cid:13) could find that there was a constitutional violation in this(cid:13) case, we turn to the question of whether the defendants(cid:13) knew or should have known that their actions were clearly(cid:13) unlawful as they advanced a qualified immunity defense in(cid:13) the district court and do so on this appeal. Officials are(cid:13) entitled to immunity unless "the law clearly proscribed the(cid:13) actions" they took. Mitchell v. Forthsythe , 472 U.S. 511,(cid:13) 528, 105 S.Ct. 2806, 2816 (1985). "[G]overnment officials(cid:13) performing discretionary functions generally are shielded(cid:13) from liability for civil damages insofar as their conduct does(cid:13) not violate clearly established statutory or constitutional(cid:13) _________________________________________________________________(cid:13) 6. We are not suggesting that a jury would have to reach that result.(cid:13) Indeed, we certainly understand why the police wanted to keep third(cid:13) parties away from Smith’s premises as the police could have believed(cid:13) that their safety would have been jeopardized by their intervention.(cid:13) Obviously, we are not suggesting that evidence along these lines would(cid:13) not be admissible at trial.(cid:13) 17(cid:13) rights of which a reasonable person would have known."(cid:13) Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,(cid:13) 2738 (1982).(cid:13) In considering the qualified immunity defense we first(cid:13) observe that we delineated the elements of a state-created(cid:13) danger claim in Mark v. Borough of Hatboro, 51 F.3d at(cid:13) 1152-53, and more clearly adopted the theory and defined(cid:13) its contours the following year in Kneipp. Thus, the right at(cid:13) issue in this case was clearly established at the time the(cid:13) incident occurred. A plaintiff, however, must show more to(cid:13) survive a motion for summary judgment predicated on a(cid:13) qualified immunity defense. "The contours of the right must(cid:13) be sufficiently clear that a reasonable official would(cid:13) understand that what he is doing violates that right."(cid:13) Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,(cid:13) 3039 (1987). Moreover, in a multi-defendant case the(cid:13) district court should "analyze the specific conduct of each(cid:13) . . . Defendant with respect to the constitutional right at(cid:13) issue." Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir.(cid:13) 1996) (emphasis in original).(cid:13) Inasmuch as the district court did not reach the qualified(cid:13) immunity question, and in recognition that the record is(cid:13) unclear as to the relationship between each defendant’s(cid:13) specific conduct and the rights at issue, we find it(cid:13) appropriate to remand the qualified immunity issue to(cid:13) allow the district court to make the necessary factual(cid:13) determinations with respect to qualified immunity in the(cid:13) first instance. See id. at 122-23 ("[C]rucial to the resolution(cid:13) of any assertion of qualified immunity is a careful(cid:13) examination of the record (preferably by the district court)(cid:13) to establish, for purposes of summary judgment, a detailed(cid:13) factual description of the actions of each individual(cid:13) defendant (viewed in a light most favorable to the plaintiff).(cid:13) . . . We think that the district court . . . is in a far better(cid:13) position than we are to review the record for evidence as to(cid:13) the specific conduct of each of the . . . Defendants."); see(cid:13) also Brown v. United States, 851 F.2d 615, 620 (3d Cir.(cid:13) 1988) ("[A]lthough it is within our power to do so, it would(cid:13) be inappropriate for us to decide this question on appeal,(cid:13) even if the record provided a sufficient basis for its(cid:13) resolution.").(cid:13) 18(cid:13) b. Alleged Cover-Up and Mishandling of Smith’s Corpse(cid:13) Cover-ups that prevent a person who has been wronged(cid:13) from vindicating his rights violate the right of access to the(cid:13) courts protected by the substantive due process clause.(cid:13) Swekel v. City of River Rouge, 119 F.3d 1259, 1261-64 (6th(cid:13) Cir. 1997); Bell v. City of Milwaukee, 746 F.2d 1205, 1253-(cid:13) 58 (7th Cir. 1984); Ryland v. Shapiro, 708 F.2d 967, 97-75(cid:13) (5th Cir. 1983); see also Wolff v. McDonnell, 418 U.S. 539,(cid:13) 579, 94 S.Ct. 2963, 2986 (1974) ("The right of access to the(cid:13) courts . . . is founded in the Due Process Clause and(cid:13) assures that no person will be denied the opportunity to(cid:13) present to the judiciary allegations concerning violations of(cid:13) fundamental constitutional rights."). "[I]f state officials(cid:13) wrongfully and intentionally conceal information crucial to(cid:13) a person’s ability to obtain redress through the courts, and(cid:13) do so for the purpose of frustrating that right, and that(cid:13) concealment and the delay engendered by it substantially(cid:13) reduce the likelihood of one’s obtaining the relief to which(cid:13) one is otherwise entitled, they may have committed a(cid:13) constitutional violation." Swekel, 119 F.3d at 1262-63(cid:13) (citing Ryland, 708 F.2d at 969-70).(cid:13) Notwithstanding the broad formulation of the principle(cid:13) that a state officer’s cover-up may create constitutional(cid:13) liability, in practice the courts have been cautious in(cid:13) allowing liability to be imposed on that basis. Thus, a(cid:13) plaintiff typically cannot recover for any cover-ups or(cid:13) discovery abuses after an action has been filed inasmuch(cid:13) as the trial court can deal with such situations in the(cid:13) ongoing action. In fact, if alleged cover-ups in the course of(cid:13) litigation are regarded as actionable under section 1983 it(cid:13) is foreseeable that an initial civil rights action, or indeed(cid:13) any action against a state or local government or its(cid:13) officers, will be only the first in a series of such cases.(cid:13) Thus, only prefiling conduct that either prevents a plaintiff(cid:13) from filing suit or renders the plaintiff ’s access to the court(cid:13) ineffective or meaningless constitutes a constitutional(cid:13) violation. Id. at 1261-64; see also Foster v. City of Lake(cid:13) Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (suggesting that(cid:13) the right of access to the courts encompasses "a right to file(cid:13) an action, but not the right to proceed free of discovery(cid:13) abuses after filing").(cid:13) 19(cid:13) The Smiths point out that the police refused to return(cid:13) Smith’s answering machine tapes after they dropped the(cid:13) charges against him and that when they returned the tapes(cid:13) they did not contain any of the officers’ voices, despite the(cid:13) fact that police records show that officers left numerous(cid:13) messages during the incident. They suggest that the(cid:13) defendants either have withheld tapes containing their(cid:13) voices, or altered tapes to erase their voices. Furthermore,(cid:13) the Smiths point to a note in an internal police record(cid:13) referring to concerns about "possible civil litigation" to(cid:13) suggest that the defendants tampered with the tapes for the(cid:13) purpose of impeding the Smiths from pursuing their rights.(cid:13) App. at 561. Finally, the Smiths rely on the evidence(cid:13) summarized above suggesting that the police came into(cid:13) contact with Smith’s body earlier than reported and that(cid:13) their refusal to use search dogs prevented a more definitive(cid:13) autopsy by allowing the body to decompose.(cid:13) Even if the Smiths can prove that the defendants(cid:13) attempted to effectuate a cover-up, they have not made a(cid:13) showing that the defendants’ efforts either prevented the(cid:13) Smiths from filing suit or rendered their access to the(cid:13) courts ineffective or meaningless. Nor have the Smiths(cid:13) provided support for their contention that a more complete(cid:13) autopsy could have revealed more helpful information than(cid:13) was obtained from the autopsy conducted which, when(cid:13) coupled with their expert testimony, supplied a basis for a(cid:13) jury to attribute Smith’s death to defendants’ conduct.(cid:13) Furthermore, the Smiths raised the issue of potentially(cid:13) altered tapes in the district court which thus was in a(cid:13) position to address their concerns.(cid:13) In any event, the Smiths were able to bring this action(cid:13) and present substantial evidence of central importance to(cid:13) their case. As a result, even assuming that they have(cid:13) proffered sufficient evidence for a jury to conclude that(cid:13) there was a cover-up, the alleged conduct did not prevent(cid:13) them from filing suit or render their access to the courts(cid:13) ineffective or meaningless. Indeed, this very opinion(cid:13) demonstrates that the Smiths have been able to develop the(cid:13) facts in this case quite effectively. Overall, we are satisfied(cid:13) that neither their cover-up and mishandling theories can(cid:13) support a substantive due process claim.(cid:13) 20(cid:13) 2. First Amendment Retaliation Claim(cid:13) To prove that the defendants violated Smith’s First(cid:13) Amendment rights by retaliating against him for filing(cid:13) complaints, the Smiths must show: (1) that Smith engaged(cid:13) in protected activity; (2) that the government responded(cid:13) with retaliation; and (3) that the protected activity was the(cid:13) cause of the retaliation. See Anderson v. Davila , 125 F.3d(cid:13) 148, 161 (3d Cir. 1997). The district court properly(cid:13) concluded that the Smiths provided insufficient evidence of(cid:13) a causal link to survive summary judgment.(cid:13) We first consider the timing of the alleged retaliation(cid:13) remembering that "[e]ven if timing alone could ever be(cid:13) sufficient to establish a causal link, . . . the timing of the(cid:13) alleged retaliatory action must be ‘unusually suggestive’ of(cid:13) retaliatory motive before a causal link will be inferred."(cid:13) Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.(cid:13) 1997). Thus, in recognition of that principle, we have held(cid:13) that such an inference could be drawn where two days(cid:13) passed between the protected activity and the alleged(cid:13) retaliation, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d(cid:13) Cir. 1989), but not where 19 months had elapsed, see(cid:13) Krouse, 126 F.3d at 503. Smith lodged all his complaints(cid:13) between 1991 and 1998 so that the timing of the alleged(cid:13) retaliatory action, which started on July 10, 1999, is not(cid:13) unusually suggestive of retaliatory motive.(cid:13) We have recognized, however, that "timing plus other(cid:13) evidence may be an appropriate test where the temporal(cid:13) proximity is not so close as to be ‘unduly suggestive.’ "(cid:13) Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.(cid:13) 2000). But the Smiths have not offered other evidence in(cid:13) support of their retaliation claim, suggesting merely that,(cid:13) drawing all inferences in their favor, the officers’ targeting(cid:13) of Smith on July 10, 1999, and the force with which they(cid:13) acted could convince a reasonable jury of the causal link.(cid:13) This suggestion, however, does not constitute affirmative(cid:13) evidence. Although it is undisputed that a number of the(cid:13) officers were aware of Smith’s complaints, there is no(cid:13) evidence to suggest that an intent to retaliate against him(cid:13) caused or contributed to the events of July 10, 1999. In(cid:13) fact, the officers went to Smith’s premises on that day in(cid:13) 21(cid:13) response to a complaint by Shafer rather than on their own(cid:13) initiative.(cid:13) We also point out that a court in considering a First(cid:13) Amendment retaliation claim against a police officer should(cid:13) be cautious in allowing it to proceed to trial in the face of(cid:13) the officer’s summary judgment motion. In this regard we(cid:13) observe that officers should not by reason of potential civil(cid:13) liability be discouraged from intervening when their services(cid:13) are needed by the not surprising circumstance that a claim(cid:13) has been lodged against a person with whom they have had(cid:13) previous adverse dealings. Society may pay a high price if(cid:13) officers do not take action when they should do so. We(cid:13) therefore will affirm the district court’s judgment as to this(cid:13) claim.(cid:13) 3. Fourth Amendment Claims(cid:13) The Smiths predicate their Fourth Amendment argument(cid:13) on four theories: (1) use of excessive force; (2) unreasonable(cid:13) seizure; (3) unreasonable search; (4) malicious prosecution.(cid:13) a. The Red Dot and Probable Cause(cid:13) The Smiths’ assertion that there remains a genuine issue(cid:13) of material fact as to whether Marasco and Scianna(cid:13) actually saw a red light and believed that that light might(cid:13) be emanating from a laser-sighted weapon pointed at them(cid:13) by Smith is central to their Fourth Amendment theories.7(cid:13) The district court found that the troopers knew that Smith(cid:13) was mentally unstable and that he possessed guns; that it(cid:13) was undisputed that Scianna observed a red light in the(cid:13) window of the Smith residence and that Marasco saw a red(cid:13) dot appear on Scianna’s person; and that the troopers were(cid:13) aware that Shafer once had complained about Smith(cid:13) shooting out his lights. The district court then applied(cid:13) these findings in determining that the officers had an(cid:13) objectively reasonable belief that Smith was engaged in(cid:13) _________________________________________________________________(cid:13) 7. As we interpret the Smiths’ argument their contention with respect to(cid:13) a lack of probable cause does not in itself assert a Fourth Amendment(cid:13) claim but is germane to their other Fourth Amendment claims. If we(cid:13) misunderstand their position it does not matter as we are finding that(cid:13) probable cause existed.(cid:13) 22(cid:13) criminal activity and that the force they used was a(cid:13) reasonable response to the danger they faced.(cid:13) The Smiths argue primarily that a reasonable jury could(cid:13) discredit the officers’ account of the incident and find that(cid:13) Marasco did not in fact believe that Smith targeted a laser-(cid:13) sighted weapon at Scianna. They note our approval of an(cid:13) opinion by the Court of Appeals for the Ninth Circuit(cid:13) warning that "courts should be cautious on summary(cid:13) judgment to ‘ensure that the officer is not taking advantage(cid:13) of the fact that the witness most likely to contradict his(cid:13) story--the [decedent]--is unable to testify,’ " and that the(cid:13) " ‘court may not simply accept what may be a selfserving(cid:13) account by the officer. . . . [but] must also look at the(cid:13) circumstantial evidence that, if believed, would tend to(cid:13) discredit the police officer’s story, and consider whether(cid:13) this evidence could convince a rational fact finder that the(cid:13) officer acted unreasonably.’ " Abraham v. Raso, 183 F.3d(cid:13) 279, 294 (3d Cir. 1999) (quoting Scott v. Henrich, 39 F.3d(cid:13) 912, 915 (9th Cir. 1994)). Of course, this admonition does(cid:13) not alter the requirement that a party opposing summary(cid:13) judgment must present affirmative evidence--whether(cid:13) direct or circumstantial--to defeat summary judgment, and(cid:13) may not rely simply on the assertion that a reasonable jury(cid:13) could discredit the opponent’s account. See Williams v.(cid:13) Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir.(cid:13) 1989).(cid:13) "[P]robable cause to arrest exists when the facts and(cid:13) circumstances within the arresting officer’s knowledge are(cid:13) sufficient in themselves to warrant a reasonable person to(cid:13) believe that an offense has been or is being committed by(cid:13) the person to be arrested." Orsatti v. New Jersey State(cid:13) Police, 71 F.3d 480, 482 (3d Cir. 1995). Although, generally,(cid:13) "the question of probable cause in a section 1983 damage(cid:13) suit is one for the jury," Montgomery v. De Simone, 159(cid:13) F.3d 120, 124 (3d Cir. 1998), a district court may conclude(cid:13) "that probable cause did exist as a matter of law if the(cid:13) evidence, viewed most favorably to Plaintiff, reasonably(cid:13) would not support a contrary factual finding," and may(cid:13) enter summary judgment accordingly. Sherwood v.(cid:13) Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).(cid:13) 23(cid:13) The Smiths have not proffered affirmative evidence(cid:13) raising questions of material fact with regard to the officers’(cid:13) account. First, they rely on various facts allegedly(cid:13) suggesting that Marasco had an improper motive: alleged(cid:13) contradictions in the record as to why the officers went to(cid:13) the scene; the fact that Marasco’s decision to respond to a(cid:13) complaint about bright lights was made at 3:00 p.m., when(cid:13) bright lights could not have been a problem; the fact that(cid:13) Marasco was outside of his assigned geographic position;(cid:13) and Marasco’s failure to heed his supervisor’s directions to(cid:13) leave the premises if Smith did not respond. Improper(cid:13) motive, however, is irrelevant to the question whether the(cid:13) objective facts available to the officers at the time(cid:13) reasonably could have led the officers to conclude that(cid:13) Smith was committing an offense. See Whren v. United(cid:13) States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774 (1996)(cid:13) ("Subjective intentions play no role in ordinary, probable-(cid:13) cause Fourth Amendment analysis.").(cid:13) The Smiths also point to contradictions concerning where(cid:13) on Scianna’s body the troopers purportedly observed the(cid:13) light and whether both officers were in the backyard when(cid:13) Scianna mentioned seeing what he at first took to be a(cid:13) video camera in the window. However, neither of these(cid:13) inconsistencies tends to discredit the essential portion of(cid:13) Marasco’s account: that, at some point when the officers(cid:13) were together, he observed what he reasonably took to be(cid:13) a laser sight pointed at Scianna.(cid:13) Finally, the Smiths suggest that any red light, if the(cid:13) troopers indeed saw one, could not have been emanating(cid:13) from Smith’s residence because the troopers at one point(cid:13) stated that the beam was pointed at Scianna’s back while(cid:13) he faced the rear of the house. The Smiths further argue(cid:13) that it is undisputed that Shafer was home at the time and(cid:13) that he likely possessed firearms. The record, however, will(cid:13) not support a finding that the light emanated from Shafer’s(cid:13) property. Moreover, the officers already had spoken to(cid:13) Shafer and there is no suggestion that they considered him(cid:13) a threat of any magnitude. More importantly, Marasco(cid:13) testified that the red light shone on different parts of(cid:13) Scianna’s body as he turned around, so the fact that the(cid:13) light was at some point on Scianna’s back and at another(cid:13) 24(cid:13) point may have been on his chest or arm is not(cid:13) determinative of the place of the origin of the light. Even if(cid:13) the light came from some other part of Smith’s property,(cid:13) the officers, based on their knowledge that Smith possessed(cid:13) firearms, their knowledge of Shafer’s complaint that Smith(cid:13) had shot out his lights, and the fact that Smith was not(cid:13) answering their calls despite indications that he was on the(cid:13) property, reasonably concluded that Smith might be(cid:13) targeting them with a laser-sighted weapon.(cid:13) In sum, the record establishes that the officers had an(cid:13) objectively reasonable belief that Smith might be in the(cid:13) house, ignoring their attempts to communicate with him(cid:13) and bearing a laser-sighted firearm. The record also(cid:13) establishes that, at some point, Marasco believed that(cid:13) Scianna was being targeted by that firearm. At that point,(cid:13) therefore, the officers had probable cause to seek to arrest(cid:13) Smith.(cid:13) b. Excessive Force Claim(cid:13) Of course, the fact that the defendants had probable(cid:13) cause to arrest Smith does not mean that they could use(cid:13) any amount of force in that process. Rather, they could not(cid:13) use excessive force. "To state a claim for excessive force as(cid:13) an unreasonable seizure under the Fourth Amendment, a(cid:13) plaintiff must show that a ‘seizure’ occurred and that it was(cid:13) unreasonable." Abraham, 183 F.3d at 288. Inasmuch as(cid:13) the defendants do not contest that there was a seizure in(cid:13) this case, in considering the excessive force contention the(cid:13) only question on appeal is whether the force used to effect(cid:13) that seizure was reasonable.(cid:13) The test of reasonableness under the Fourth Amendment(cid:13) is whether, under the totality of the circumstances,"the(cid:13) officers’ actions are ‘objectively reasonable’ in light of the(cid:13) facts and circumstances confronting them, without regard(cid:13) to their underlying intent or motivations." Graham v.(cid:13) Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872 (1989).(cid:13) Thus, if a use of force is objectively unreasonable, an(cid:13) officer’s good faith is irrelevant; likewise, if a use of force is(cid:13) objectively reasonable, any bad faith motivation on the(cid:13) officer’s part is immaterial. See Abraham, 183 F.3d at 289.(cid:13) 25(cid:13) Factors to consider in making a determination of(cid:13) reasonableness include the severity of the crime at issue,(cid:13) whether the suspect poses an immediate threat to the(cid:13) safety of the officers or others, and whether he actively is(cid:13) resisting arrest or attempting to evade arrest by flight, see(cid:13) Graham, 490 U.S. at 396, 109 S.Ct. at 1872, as well as the(cid:13) possibility that the persons subject to the police action are(cid:13) themselves violent or dangerous, the duration of the action,(cid:13) whether the action takes place in the context of effecting an(cid:13) arrest, the possibility that the suspect may be armed, and(cid:13) the number of persons with whom the police officers must(cid:13) contend at one time, see Sharrar v. Felsing, 128 F.3d 810,(cid:13) 822 (3d Cir. 1997). Of course,(cid:13) [t]he ‘reasonableness’ of a particular use of force must(cid:13) be judged from the perspective of a reasonable officer(cid:13) on the scene, rather than with the 20/20 vision of(cid:13) hindsight. . . . The calculus of reasonableness must(cid:13) embody allowance for the fact that police officers are(cid:13) often forced to make split-second judgments--in(cid:13) circumstances that are tense, uncertain, and rapidly(cid:13) evolving--about the amount of force that is necessary(cid:13) in a particular situation.(cid:13) Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872. Finally,(cid:13) although "reasonableness under the Fourth Amendment(cid:13) should frequently remain a question for the jury," Abraham,(cid:13) 183 F.3d at 290, " ‘defendants can still win on summary(cid:13) judgment if the district court concludes, after resolving all(cid:13) factual disputes in favor of the plaintiff, that the officer’s(cid:13) use of force was objectively reasonable under the(cid:13) circumstances,’ " id. (quoting Scott v. Henrich, 39 F.3d at(cid:13) 915).(cid:13) As already noted, the record establishes that the officers(cid:13) had an objectively reasonable belief that Smith might be(cid:13) targeting them with a laser-sighted firearm. For purposes of(cid:13) the Smiths’ excessive force claim, however, the objective(cid:13) reasonableness inquiry does not end here. The ultimate(cid:13) question on review is whether the decision to activate SERT(cid:13) and SERT’s subsequent actions were objectively reasonable(cid:13) responses to this situation. The Smiths have proffered(cid:13) sufficient evidence to make this a question appropriate for(cid:13) resolution by a jury.(cid:13) 26(cid:13) The district court concluded that the force used in this(cid:13) case was far less extreme than that the police used in(cid:13) Sharrar v. Felsing, in which we affirmed a district court’s(cid:13) grant of summary judgment in favor of the defendant(cid:13) officers on an excessive force claim. App. at 35-36. It is true(cid:13) that the officers’ conduct here was certainly no more(cid:13) forceful than in Sharrar, where an eight-member SWAT(cid:13) team dressed in black fatigues and carrying shotguns,(cid:13) rifles, and submachine guns was deployed, a police sniper(cid:13) was called in, a perimeter was established, and police, after(cid:13) calling the suspects out of their house, forced the suspects(cid:13) to the ground and repeatedly yelled at them, "[k]eep your(cid:13) fucking head down or I’ll blow it the fuck off." Sharrar, 128(cid:13) F.3d at 815-16. In Sharrar, with respect to the excessive(cid:13) force claim, we concluded: "[w]hile the language and(cid:13) method used to effect the arrests appear to be more akin to(cid:13) the Rambo-type behavior associated with police in(cid:13) overdramatized B movies or TV shows than the police(cid:13) conduct ordinarily expected in a quiet, family seaside town,(cid:13) we are reluctant to establish a precedent that would subject(cid:13) every police arrest of a group of possible violent offenders to(cid:13) compliance with Marquis of Queensberry Rules of fair play."(cid:13) Id. at 822. The district court, seizing on this language,(cid:13) concluded that the less severe conduct in this case was(cid:13) therefore not unreasonable.(cid:13) The district court erred by failing to take into account(cid:13) another portion of the reasonableness equation, namely,(cid:13) the severity of the threat to which officers were responding,(cid:13) in keeping with the Graham and Sharrar factors.8 In(cid:13) Sharrar, officers were arresting four men and had been(cid:13) advised that at least one of the men had used a gun in a(cid:13) violent episode one to two hours before. Furthermore, there(cid:13) had been some suggestion that the suspects were involved(cid:13) with drugs, and arrests actually were made. Id. In this(cid:13) case, by contrast, officers were approaching only one man(cid:13) and, unlike in Sharrar, where a violent assault involving a(cid:13) gun was itself the catalyst for the police arriving on the(cid:13) scene, were responding to a minor complaint.(cid:13) _________________________________________________________________(cid:13) 8. Although the district court quoted the factors identified in Sharrar, it(cid:13) failed to consider any of them in its analysis except to note that Smith(cid:13) was known to possess weapons.(cid:13) 27(cid:13) We realize that several officers knew of Smith’s PTSD or(cid:13) at least considered him unstable, and it generally was(cid:13) believed that Smith possessed firearms. These factors may(cid:13) be seen as tending to support the use of force.(cid:13) Nevertheless, there were a number of other Graham and(cid:13) Sharrar factors suggesting unreasonableness. There was no(cid:13) indication that Smith had been using a gun recently or that(cid:13) Smith ever has used a gun in a violent manner. No arrest(cid:13) was made, and the Smiths have proffered evidence(cid:13) suggesting that an arrest warrant was not even sought(cid:13) until after SERT was activated. Most importantly, there is(cid:13) no indication in the record that Smith had any history of(cid:13) violence of which the officers may have been aware. Finally,(cid:13) unlike in Sharrar, where just over three hours transpired(cid:13) between the victim’s 911 call and the arrest of the four(cid:13) suspects, here, according to the incident report,(cid:13) approximately two and one half hours transpired between(cid:13) Shafer’s call to the police and the decision to activate SERT,(cid:13) and at least six hours passed between the phone call and(cid:13) initiation of the first "rock assault" on the Smith residence.(cid:13) In fact the police did not finally clear the residence until(cid:13) approximately 7:30 a.m. on July 11, 1999, approximately(cid:13) eight and one-half or nine hours after the call that initiated(cid:13) their activity. A number of the relevant factors therefore cut(cid:13) against a determination that they used reasonable force.(cid:13) We also point out that the district court does not appear(cid:13) to have considered certain other relevant facts in the light(cid:13) most favorable to the Smiths. For example, the district(cid:13) court summarily concluded that the officers’ awareness of(cid:13) Smith’s PTSD cuts in favor of reasonableness because,(cid:13) given Smith’s history of mental problems and possession of(cid:13) weapons, the officers reasonably would believe that their(cid:13) lives were in danger. The question the district court should(cid:13) have asked, however, was not simply whether the officers(cid:13) reasonably believed their lives were in danger, but whether(cid:13) the activation of SERT and the tactics of that unit were a(cid:13) reasonable response to that belief in the circumstances of(cid:13) this case.(cid:13) We recognize that a jury could conclude, as the district(cid:13) court apparently did, that this overwhelming show of force(cid:13) was a reasonable response to the threat the officers(cid:13) 28(cid:13) perceived. However, a jury should be allowed to consider(cid:13) the testimony of the Smiths’ police practices expert, Dr.(cid:13) McCauley, who opined that the police responded(cid:13) unreasonably to a situation involving a known Emotionally(cid:13) Disturbed Person ("EDP"). Likewise, it appears to be(cid:13) significant that Hall, who played a part in the decision to(cid:13) activate SERT, testified that SERT is not activated unless a(cid:13) warrant has been or is in the process of being prepared, or(cid:13) if exigent circumstances exist. Hall did not believe that(cid:13) there were exigent circumstances, and the decision to(cid:13) obtain a warrant appears to have been made after SERT(cid:13) was activated. If SERT activation was unwarranted under(cid:13) SERT’s own procedures, that fact is at least probative of(cid:13) unreasonableness.(cid:13) In sum, the Smiths have proffered evidence sufficient to(cid:13) require that the question of the reasonableness of activating(cid:13) SERT and of SERT’s tactics be submitted to a jury. As the(cid:13) Court of Appeals for the Tenth Circuit recently has noted,(cid:13) The decision to deploy a SWAT team to execute a(cid:13) warrant necessarily involves the decision to make an(cid:13) overwhelming show of force--force far greater than that(cid:13) normally applied in police encounters with citizens.(cid:13) Indeed, it is the SWAT team’s extraordinary and(cid:13) overwhelming show of force that makes ‘dynamic entry’(cid:13) a viable law enforcement tactic in dealing with difficult(cid:13) and dangerous situations. . . .(cid:13) . . . .(cid:13) The ‘SWAT’ designation does not grant license to law(cid:13) enforcement officers to abuse suspects or bystanders,(cid:13) or to vent in an unprofessional manner their own pent-(cid:13) up aggression, personal frustration or animosity(cid:13) toward others. If anything, the special circumstances(cid:13) and greater risks that warrant ‘dynamic entry’ by a(cid:13) SWAT team call for more discipline, control,(cid:13) mindfulness, and restraint on the part of law(cid:13) enforcement, not less. SWAT officers are specially(cid:13) trained and equipped to deal with a variety of difficult(cid:13) situations, including those requiring a swift and(cid:13) overwhelming show of force. At all times, SWAT officers(cid:13) no less than others--dressed in camouflage or not--(cid:13) 29(cid:13) must keep it clearly in mind that we are not at war(cid:13) with our own people.(cid:13) Holland v. Harrington, 268 F.3d 1179, 1190-95 (10th Cir.(cid:13) 2001) (emphasis in original).9(cid:13) As with the Smiths’ state-created danger claim, the(cid:13) district court did not reach the issue of qualified immunity.(cid:13) For the reasons expressed above, we will remand the case(cid:13) to allow the district court to determine that issue in the(cid:13) first instance.(cid:13) c. Unreasonable Seizure(cid:13) Even assuming that there was a seizure because Smith(cid:13) was still in the house when the police formed a perimeter(cid:13) around his property, the Smiths cannot establish a Fourth(cid:13) Amendment violation based on the officers’ conduct(cid:13) following observation of the red dot by Marasco. We(cid:13) recognize that it is undisputed that officers did not have a(cid:13) warrant when they arrived at Smith’s home or when they(cid:13) established a perimeter around his property before(cid:13) activating SERT and that a warrantless seizure in a(cid:13) person’s home violates the Fourth Amendment unless both(cid:13) probable cause and exigent circumstances are present. See(cid:13) United States v. Payton, 445 U.S. 573, 590, 100 S.Ct. 1371,(cid:13) 1382 (1980). But as we already have pointed out there was(cid:13) probable cause here to believe a crime had been committed.(cid:13) Thus, we address the exigent circumstances consideration.(cid:13) It is established that there are exigent circumstances if the(cid:13) safety of either law enforcement or the general public is(cid:13) threatened. Warden v. Hayden, 387 U.S. 294, 298-299, 87(cid:13) S.Ct. 1642, 1645-46 (1967). A court makes the(cid:13) determination of whether there were exigent circumstances(cid:13) by reviewing the facts and reasonably discoverable(cid:13) information available to the officers at the time they took(cid:13) their actions and in making this determination considers(cid:13) the totality of the circumstances facing them. See United(cid:13) _________________________________________________________________(cid:13) 9. In Holland, the court of appeals affirmed the district court’s grant of(cid:13) summary judgment in favor of the defendants on an excessive force(cid:13) claim based on the decision to activate the SWAT team, but reversed and(cid:13) remanded on the question whether the actions taken by the SWAT team(cid:13) once deployed were reasonable. Holland, 268 F.3d at 1191-92, 1195.(cid:13) 30(cid:13) States v. Sculco, 82 F. Supp. 2d 410, 417 (E.D. Pa. 2000).(cid:13) Inasmuch as the officers had reason to believe that a laser-(cid:13) sighted weapon was being pointed at them, they had reason(cid:13) to fear for their own safety. Consequently, there were(cid:13) exigent circumstances and establishment of a perimeter did(cid:13) not constitute an unreasonable seizure.(cid:13) d. Unreasonable Search(cid:13) The Smiths also contend that Marasco and Scianna(cid:13) engaged in an unreasonable search before they believed(cid:13) they were being sighted. Fourth Amendment protections(cid:13) extend not only to a person’s home, but also to the(cid:13) curtilage surrounding the property. United States v. Dunn,(cid:13) 480 U.S. 294, 300-01, 107 S.Ct. 1134, 1139 (1987). 10 In(cid:13) this case, after Smith failed to respond when Marasco and(cid:13) Scianna knocked at the front door, the officers, according(cid:13) to their testimony, proceeded into the backyard of the(cid:13) house and Marasco, at least, entered the garage. At that(cid:13) time, the officers did not possess a warrant, nor were there(cid:13) exigent circumstances, inasmuch as the officers simply(cid:13) were responding to a minor complaint and there was no(cid:13) indication of any danger to the officers’ or others’ safety or(cid:13) of any other conduct suggesting the existence of an(cid:13) exigency. Furthermore, the district court found that the(cid:13) officers entered the curtilage, where Smith had a legitimate(cid:13) expectation of privacy, and we find no reason to disturb(cid:13) that finding.(cid:13) The defendants correctly point out that courts generally(cid:13) recognize a "knock and talk" exception to the warrant(cid:13) requirement. See, e.g., Rogers v. Pendleton, 249 F.3d 279,(cid:13) 289-90 (4th Cir. 2001). Officers are allowed to knock on a(cid:13) residence’s door or otherwise approach the residence(cid:13) seeking to speak to the inhabitants just as any private(cid:13) citizen may. Id. According to one scholar,"when the police(cid:13) come on to private property to conduct an investigation or(cid:13) for some other legitimate purpose and restrict their(cid:13) _________________________________________________________________(cid:13) 10. We need not discuss the extent of the curtilage of Smith’s home for(cid:13) it is clear that the activity subject to Fourth Amendment scrutiny was(cid:13) within the curtilage whatever its extent and the defendants do not(cid:13) contend otherwise.(cid:13) 31(cid:13) movements to places visitors could be expected to go (e.g.,(cid:13) walkways, driveways, porches), observations made from(cid:13) such vantage points are not covered by the Fourth(cid:13) Amendment." Wayne R. LaFave, 1 Search and Seizure: A(cid:13) Treatise on the Fourth Amendment S 2.3(f) (3d ed. & Supp.(cid:13) 2003) (footnotes omitted). Rogers itself, however, stands for(cid:13) the proposition that this principle does not extend officers(cid:13) the right to make a general investigation in the curtilage(cid:13) based only on reasonable suspicion, at least where the(cid:13) inhabitant requests that the officers leave. Id.(cid:13) Some courts of appeals have been more permissive of this(cid:13) sort of police activity, holding that it is reasonable and(cid:13) lawful as a matter of law for officers to move away from the(cid:13) front door as part of a legitimate attempt to interview a(cid:13) person. See United States v. Hammett, 236 F.3d 1054, 1060(cid:13) (9th Cir. 2001) ("[A police] officer may, in good faith, move(cid:13) away from the front door when seeking to contact the(cid:13) occupants of a residence."); United States v. Raines, 243(cid:13) F.3d 419, 421 (8th Cir. 2001) (recognizing "that law(cid:13) enforcement officers must sometimes move away from the(cid:13) front door when attempting to contact the occupants of a(cid:13) residence" and finding that a deputy sheriff did not(cid:13) interfere with defendant’s "privacy interest when he, in good(cid:13) faith, went unimpeded to the back of [defendant’s] home to(cid:13) contact the occupants of the residence" to serve civil(cid:13) process); United States v. Daoust, 916 F.2d 757, 758 (1st(cid:13) Cir. 1990) ("[I]f [the front] door is inaccessible[,] there is(cid:13) nothing unlawful or unreasonable about [a state police(cid:13) officer] going to the back of the house to look for another(cid:13) door, all as part of a legitimate attempt to interview a(cid:13) person."); United States v. Anderson, 552 F.2d 1296, 1300(cid:13) (8th Cir. 1977) ("We cannot say that the [federal law(cid:13) enforcement] agents’ action in proceeding to the rear after(cid:13) receiving no answer at the front door was so incompatible(cid:13) with the scope of their original purpose that any evidence(cid:13) inadvertently seen by them must be excluded as the fruit of(cid:13) an illegal search.").(cid:13) Extrapolating from this line of cases, the district court(cid:13) appears to have suggested that officers may proceed to the(cid:13) back of a home when they do not receive an answer at the(cid:13) front door any time they have a legitimate purpose for(cid:13) 32(cid:13) approaching the house in the first place. App. at 43. But(cid:13) the case law does not support such a sweeping proposition.(cid:13) For example, in Raines and Anderson the courts, after(cid:13) concluding that officers’ entry into the curtilage constituted(cid:13) entry into an area in which the resident had a reasonable(cid:13) expectation of privacy, held that the officers’ limited(cid:13) intrusions were justified under the facts of those specific(cid:13) cases. In Raines, an officer attempting to serve civil process(cid:13) who did not obtain an answer at the front door, proceeded(cid:13) to the backyard because he had observed several cars(cid:13) parked in the driveway and suspected that the inhabitants(cid:13) might be sitting outside on a summer evening, unable to(cid:13) hear his knocking. Raines, 243 F.3d at 420-21. In the back,(cid:13) he saw a makeshift fence with a ten-foot wide opening. Id.(cid:13) at 420. Through the opening, he saw a large number of(cid:13) marijuana plants growing, and he left immediately. Id. at(cid:13) 420-21.(cid:13) In Anderson, officers investigating a theft proceeded to(cid:13) the back of a house after not receiving an answer at the(cid:13) front door when they heard a dog barking. Anderson, 552(cid:13) F.2d at 1298. Suspecting that the owner might be with the(cid:13) dog, they proceeded to the back of the house, observing(cid:13) suspected stolen items through a window on the way. Id.(cid:13) After finding the dog alone, they immediately returned to(cid:13) the front of the house. Id. In Daoust , officers approached(cid:13) "an isolated log house dug into the side of a hill" in an(cid:13) attempt to question the owner as part of a drug(cid:13) investigation. Daoust, 916 F.2d at 758. They noticed toys in(cid:13) the driveway and observed that the front door was(cid:13) inaccessible, as it was five feet above ground and had no(cid:13) steps. Id. They knocked on a cellar door but did not receive(cid:13) an answer, and left. They later returned, and, after again(cid:13) not getting an answer at the cellar door, proceeded to the(cid:13) back of the house where they observed a firearm through a(cid:13) window. Id. In Hammett, however, the court flatly accepted(cid:13) the argument that it is necessarily reasonable for officers to(cid:13) proceed to the back of a house simply for the purpose of(cid:13) locating someone with whom to speak or to locate another(cid:13) door. Hammett, 236 F.3d at 1060.(cid:13) Although the officers had a right to knock at Smith’s(cid:13) front door in an attempt to investigate Shafer’s complaint,(cid:13) 33(cid:13) we reject the defendants’ argument that this right(cid:13) necessarily extended to the officers the right to enter into(cid:13) the curtilage. Where officers are pursuing a lawful objective,(cid:13) unconnected to any search for the fruits and(cid:13) instrumentalities of criminal activity, their entry into the(cid:13) curtilage after not receiving an answer at the front door(cid:13) might be reasonable as entry into the curtilage may provide(cid:13) the only practicable way of attempting to contact the(cid:13) resident, as in Daoust, where the front door was(cid:13) inaccessible. Similarly, officers reasonably may believe,(cid:13) based on the facts available to them, that the person they(cid:13) seek to interview may be located elsewhere on property(cid:13) within the curtilage, as in Anderson and Raines, and, as in(cid:13) those cases, an officer’s brief entry into the curtilage to test(cid:13) this belief might be justified. Furthermore, even where(cid:13) officers are only investigating a minor nuisance complaint,(cid:13) the circumstances of the investigation may indicate the(cid:13) presence of an exigency justifying entry into the curtilage.(cid:13) Cf. United States v. Rohrig, 98 F.3d 1506, 1518-25 (6th Cir.(cid:13) 1996) (holding that officers’ warrantless entry into a house(cid:13) to locate and abate a nuisance--loud music played late at(cid:13) night of which neighbors from blocks away had complained(cid:13) --was justified by exigent circumstances and was (cid:13) reasonable).11(cid:13) In this case, the district court did not make findings of(cid:13) fact to support its conclusion that the officers’ decision to(cid:13) proceed to the back of Smith’s house was reasonable given(cid:13) their original purpose of investigating Shafer’s complaint.(cid:13) The court did not discuss the layout of the property or the(cid:13) position of the officers on that property. It is unclear from(cid:13) the record exactly how set off Smith’s residence is from(cid:13) other properties, and there is no indication of whether the(cid:13) officers followed a path or other apparently open route that(cid:13) would be suggestive of reasonableness.(cid:13) In addition, Marasco had been to Smith’s residence in the(cid:13) past and had been in Smith’s backyard once or twice(cid:13) before. A jury could conclude that he therefore knew that(cid:13) the Smith residence did not have a back entrance as seems(cid:13) _________________________________________________________________(cid:13) 11. We express no opinion as to whether we would have found the(cid:13) circumstances presented in Rohrig to be exigent.(cid:13) 34(cid:13) to be the case.12 If Marasco had such knowledge, then this(cid:13) is not a case where the officers necessarily acted reasonably(cid:13) in proceeding to the back of the house to find another(cid:13) entrance after receiving no answer at the front door. Cf.(cid:13) Daoust, 916 F.2d at 758 (holding that officers’ conduct was(cid:13) lawful where they "went to the back ‘looking for an(cid:13) accessible main floor entrance’ not to see if unlawful(cid:13) activity was taking place, but as part of their efforts to(cid:13) interview Daoust"). It also appears that here the officers(cid:13) entered the backyard at least twice, spending a more(cid:13) significant amount of time looking around Smith’s property(cid:13) than did the officers in Raines and Anderson in looking(cid:13) around the properties involved there, and that the officers(cid:13) here did so despite having been instructed to leave if they(cid:13) did not receive an answer to their initial attempts to contact(cid:13) Smith. Furthermore, the district court did not address the(cid:13) fact that Marasco testified about entering Smith’s garage(cid:13) after receiving no answer. The record indicates that the(cid:13) garage was in fact a part of the structure of the house(cid:13) itself.(cid:13) In the circumstances, there remain questions of fact as to(cid:13) whether the officers’ intrusion into the curtilage was(cid:13) reasonable in light of their asserted purpose in making(cid:13) their entry into Smith’s property which was not to make a(cid:13) search. The district court therefore erred in granting(cid:13) summary judgment in favor of the defendants on the(cid:13) Smiths’ unreasonable search claims.13(cid:13) _________________________________________________________________(cid:13) 12. In their reply brief the Smiths assert that"there were no doors into(cid:13) the residence" from "the backyard." Appellants’ Reply br. at 27. Even if(cid:13) in fact there was a door there our result on the unreasonable search(cid:13) claim would not be changed.(cid:13) 13. Once again, the district court, having concluded that there had not(cid:13) been a constitutional violation, declined to address the qualified(cid:13) immunity issue. An individual’s Fourth Amendment interest in the(cid:13) curtilage of his home has been well settled for over a century, and at(cid:13) least since the Supreme Court reaffirmed it in Dunn. On remand, the(cid:13) district court should address the specific conduct of the defendants in(cid:13) determining whether they are entitled to qualified immunity on these(cid:13) claims.(cid:13) 35(cid:13) e. Malicious Prosecution(cid:13) To prove malicious prosecution under section 1983, a(cid:13) plaintiff must show that: (1) the defendants initiated a(cid:13) criminal proceeding; (2) the criminal proceeding ended in(cid:13) plaintiff ’s favor; (3) the proceeding was initiated without(cid:13) probable cause; (4) the defendants acted maliciously or for(cid:13) a purpose other than bringing the plaintiff to justice; and(cid:13) (5) the plaintiff suffered deprivation of liberty consistent(cid:13) with the concept of seizure as a consequence of a legal(cid:13) proceeding. See Donahue, 280 F.3d at 379-80. The Smiths’(cid:13) claim is based on the issuance of a warrant for Smith’s(cid:13) arrest and the subsequent withdrawal of charges for lack of(cid:13) probable cause. As already discussed, however, based on(cid:13) the information available to officers at the time the warrant(cid:13) was sought, there was probable cause for arrest. Because(cid:13) initiation of the proceeding without probable cause is an(cid:13) essential element of a malicious prosecution claim,(cid:13) summary judgment in favor of the defendants was(cid:13) appropriate on this claim.(cid:13) 4. State-Law Claims(cid:13) After granting summary judgment in favor of the(cid:13) defendants on all of the Smiths’ section 1983 claims, the(cid:13) district court dismissed their supplemental state tort law(cid:13) claims pursuant to 28 U.S.C. S 1367(c)(3). Because we(cid:13) reverse the district court’s grant of summary judgment with(cid:13) respect to certain of the Smiths’ section 1983 claims, we(cid:13) also will reverse the district court’s dismissal of their(cid:13) related state-law claims and the district court on the(cid:13) remand should reinstate those claims. See Gruenke v. Seip,(cid:13) 225 F.3d 290, 308 (3d Cir. 2000); Erie County Retirees(cid:13) Ass’n v. County of Erie, 220 F.3d 193, 217 (3d Cir. 2000).(cid:13) B. DISCOVERY ORDERS(cid:13) The court directed that all discovery in this case was to(cid:13) be completed by October 26, 2001. On July 27, 2001, the(cid:13) Smiths filed a Rule 56(f) motion seeking an extension for(cid:13) discovery which the district court granted. Then on August(cid:13) 24, 2001, the defendants filed their motion for summary(cid:13) judgment. On August 24, 2001, the Smiths filed their first(cid:13) notices of deposition, providing 51 depositions to be taken(cid:13) over an approximately three-week period. A magistrate(cid:13) 36(cid:13) judge thereafter denied their request for leave to take more(cid:13) than ten depositions, a limitation he earlier placed. The(cid:13) district court affirmed the magistrate judge’s decision,(cid:13) stating, "We find plaintiff ’s conduct has been dilatory and(cid:13) that no sufficient reason for taking the deposition has been(cid:13) made out." App. at 4. The district court reiterated these(cid:13) reasons and further noted that the Smiths had had the(cid:13) opportunity to depose "the major players" in the case in(cid:13) denying the Smiths’ renewed motion in its November 14,(cid:13) 2001 order. App. at 22.(cid:13) The Smiths ask us to reverse the district court’s rulings(cid:13) largely because, according to them, all depositions would(cid:13) have been taken before the close of discovery. The district(cid:13) court’s decision whether to grant leave to take additional(cid:13) depositions or to extend discovery is discretionary, however.(cid:13) Even if all depositions could have been completed before(cid:13) the close of discovery, and despite the fact that many other(cid:13) witnesses, in a case involving 46 defendants, may have(cid:13) been able to shed more light on the events in this case, we(cid:13) cannot conclude that the district court abused its(cid:13) discretion in finding that the Smiths’ conduct was dilatory.(cid:13) The district court reasonably concluded that, given the(cid:13) Smiths’ delay, granting their requests for leave would have(cid:13) been burdensome and unnecessary. Thus, on the record(cid:13) before us we cannot say that the court abused its(cid:13) discretion in entering its discovery orders. We note,(cid:13) however, that on the remand if the parties seek additional(cid:13) discovery the court is free to revisit the point.(cid:13) IV. CONCLUSION(cid:13) For the foregoing reasons, we will affirm in part and(cid:13) reverse in part the judgments of the district court. 14 We will(cid:13) _________________________________________________________________(cid:13) 14. In closing we make the following observation. A reader of this opinion(cid:13) may find it strange that we are dealing with this case as if there were(cid:13) but one plaintiff and one defendant. While such treatment at least at(cid:13) this time is reasonable with respect to the Smiths who have a common(cid:13) interest in the liability issues, it may be questionable as to the(cid:13) defendants as they did not all do the same things and we doubt that all(cid:13) had the same knowledge of the germane facts. But we nevertheless have(cid:13) dealt with this case as a single party defendant case because the parties(cid:13) 37(cid:13) affirm the district court’s grant of summary judgment in(cid:13) favor of the defendants on the Smiths’ First Amendment(cid:13) retaliation claim, Fourth Amendment unreasonable seizure(cid:13) and malicious prosecution claims, and substantive due(cid:13) process cover-up and mishandling the corpse claims and(cid:13) the district court’s rulings on the Smiths’ various discovery(cid:13) motions. We will reverse the district court’s ruling with(cid:13) respect to the Smiths’ state-created danger claim, excessive(cid:13) force claim, and unreasonable search claim, and remand(cid:13) the case to the district court for further proceedings(cid:13) consistent with this opinion. We also will reverse the order(cid:13) dismissing the Smiths’ supplemental state-law claims and(cid:13) remand those claims to the district court. Our affirmance of(cid:13) the orders on the discovery motions is without prejudice to(cid:13) the Smiths seeking to reopen discovery.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) _________________________________________________________________(cid:13) have done so in their briefs. Thus, the Smiths simply refer to the(cid:13) defendants as such and the defendants call themselves the state police.(cid:13) Yet it is entirely possible that some but not all of the defendants may be(cid:13) liable to the Smiths.(cid:13) We therefore point out that just as a court should make a(cid:13) determination on a claim of qualified immunity only by analyzing the(cid:13) conduct of each defendant in a multi-party case, see Grant v. City of(cid:13) Pittsburgh, 98 F.3d at 122, so questions regarding the basic liability of(cid:13) the defendants ultimately must be answered on an individual basis.(cid:13) Consequently, we do not by this opinion preclude individual defendants(cid:13) from moving for summary judgment on claims against them that survive(cid:13) our disposition of this appeal.(cid:13) 38

Case Details

Case Name: Estate Robert Smith v. Marasco

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 29, 2003

Citation: 318 F.3d 497

Docket Number: 02-1437

Court Abbreviation: 3rd Cir.